As an advisor to many startups and business owners for over 20 years, I believe that your intellectual property (IP) is one of your most important assets. You can just look at the Phhhoto example to see the importance of IP for startup businesses. Intellectual property rights (IPR) protection is necessary to protect your inventions from being stolen or copied. Conversely, if you are aware of third-party IP rights, you should respect such rights and take steps to ensure you don’t inadvertently step on their rights.
This article will discuss what is considered IP infringement and how to protect your business or brand from IP infringement.
Table of Contents
What constitutes intellectual property infringement?
Types of Intellectual property infringement
Examples of Intellectual Property infringement
How can you avoid Intellectual property infringement?
Remedies For Intellectual Property infringement
What constitutes intellectual property infringement?
Intellectual property (IP) infringement refers to any violation of or breaching of protected intellectual property rights. If your IP rights are violated, it means that your work has been copied or used illegally without your consent.
IP infringement may include copying, reproduction, distribution, and unauthorized use of IP rights. It can also include counterfeiting, which is the practice of making copies of genuine goods in an attempt to deceive the recipient. Although intellectual property infringement can be a serious matter, it is often difficult to determine when infringement actually takes place.
Types of intellectual property Infringement
It is against the law to infringe Intellectual Property Rights (IPRs) attached to any piece of intellectual property. The IPR owners have the power to stop others from copying, duplicating, or exploiting their work.
Intellectual Property infringement could fall under several categories:
Copyrights can only be infringed when the unauthorized use includes the entire or a substantial part of the copyright works. Unauthorized use involves copying, renting, or lending copies, performing, showing or playing, communicating, adapting, or translating copyright works.
To succeed in an action for infringement, it is important to prove that the alleged infringer intended to and did copy the work and did not independently create it.
Patent Infringement means to manufacture, use, sell, or import a patented product/process without permission from the patent owner. If you infringe a patent, the owner can take legal action against you and claim damages or an injunction legally preventing further infringement.
If you believe that your patent has been infringed, you will need to show that:
- The accused product or process falls within the scope of the claims of your patent. This means that the accused product or process must perform the same function, in substantially the same way, and to achieve substantially the same result as the patent claims.
- The accused infringer has knowledge of the patent, also known as “notice of infringement.” This can be shown through evidence such as marketing materials, product documentation, or statements made by the accused infringer.
- The accused infringer has made, used, sold, offered for sale, or imported the patented invention without your permission.
- The infringement has caused you to suffer an injury, such as lost profits or damage to your business reputation.
To prove these elements, you will need to gather evidence and present it in a clear and convincing manner. This may include expert testimony, product demonstrations, and financial analysis. You may also need to hire an attorney who specializes in patent infringement lawsuits to help you build a case and present it in court.
It’s important to note that patent infringement lawsuits can be complex and costly, so it’s advisable to consult with a patent attorney and consider your options before proceeding with a lawsuit. Other options include negotiation, licensing, or mediation.
In summary, to show that your patent has been infringed, you need to demonstrate that the accused product or process falls within the scope of the claims of your patent, that the accused infringer has knowledge of the patent, that the accused infringer has made, used, sold, offered for sale, or imported the patented invention without your permission, and that the infringement has caused you to suffer an injury. Gather evidence, present it in a clear and convincing manner and consult with a patent attorney before proceeding with a lawsuit.
Registering a trademark grants the owner exclusive property rights to the trademark’s use. Trademark infringement happens when someone uses a similar or identical trademark for identical or similar goods or services as the trademark already in use without the consent of the trademark owner. That person infringes the trademark.
Examples of Intellectual Property Infringement
There are many ways that IP infringement may occur, but these are the most common:
- Intellectual Property infringements in mobile app marketplaces and third-party sites
- Using an identical logo in order to boost sales
- Copying and claiming your writing as their own
- Social media where fraudulent profiles use trademarks and copyrighted materials to represent a brand.
- Stealing confidential information (with and without an employment agreement)
- Manufacturing patent-protected items without your permission
- Intellectual Property infringements in mobile apps marketplaces and third-party sites where fraudulent applications install malware to steal user credentials for malicious purposes or misrepresent your brand.
- The practice of leasing or selling your patent to someone who doesn’t have the legal authority.
How can you avoid intellectual property infringement?
Due to the high cost of IPR violations, it is important to make sure that you aren’t using protected content in an improper manner.
As a small business, it is prudent to check the U.S. Patent and Trademark Office database to ensure that a brand, product name, logo, or design has not been registered. We suggest that business owners follow the steps below to prevent inadvertently violating the IP rights of another person or business.
To decrease the chance of copyright infringement:
- Make your own original images. This is the best method to avoid copyright infringement.
- You must not use images or photos without permission. You cannot use images or photos of another person found online, in third-party catalogs, or images that another merchant has used to list their products. You might consider any information found online as being protected by copyright law.
- You can use the image of another person if you contact the author and ask permission.
To lower the chances of trademark infringement:
- You must not use the trademarks of others unless you have the proper licensing or other legal permissions.
- You should not use screenshots of the product listing from third-party catalogs or the internet listings for your brand
- Make sure that all images and text used in your product listings accurately reflect the item.
To decrease the chance of counterfeiting:
- Avoid selling replicas, counterfeits, and fake versions of the actual products.
- Only sell legal and authentic goods
To lower the chances of patent infringement:
There are several ways to reduce the risk of IP infringement, including:
- Conduct a thorough search: Before launching a new product or service, conduct a thorough search to ensure that you are not infringing on any existing patents, trademarks, or copyrights. This can help you to identify potential risks and take steps to avoid them.
- Obtain licenses or permission: If you are using someone else’s IP, make sure you have obtained the necessary licenses or permission. This can help you to avoid any potential infringement issues.
- Use non-infringing alternatives: If you are unsure whether a product or service infringes on someone else’s IP, consider using non-infringing alternatives. This can help you to avoid potential infringement issues while still achieving your goals.
- Mark your IP: If you have developed a new product or service, make sure you mark it with any relevant patents, trademarks, or copyrights. This can help to deter potential infringers and make it easier to prove infringement if it occurs.
- Be aware of the laws: Be aware of the laws and regulations related to IP in your country, and make sure that you are in compliance with them. This can help you to avoid potential infringement issues and protect your own IP.
- Use IP agreements: Use IP agreements such as non-disclosure agreements, licensing agreements, or covenants not to sue to protect your IP and reduce the risk of infringement.
- Monitor for infringement: Regularly monitor for potential infringement of your IP and take action if necessary. This can help to protect your IP and prevent infringement from becoming a major issue.
In summary, to reduce the risk of IP infringement, conduct a thorough search, obtain licenses or permission, use non-infringing alternatives, mark your IP, be aware of the laws, use IP agreements, and monitor for infringement. This can help to protect your IP, deter potential infringers, and reduce the risk of infringement.
In IP, the Best Defense is a great offense
If you are a new entrant into a space, you are more likely on the defense and need to catch up to established competition.
Building a great IP portfolio involves several steps, including:
- Identify your IP assets: Identify all of your IP assets, including patents, trademarks, copyrights, trade secrets, and domain names. This will help you to understand what you have, and what you may need to protect.
- Conduct a thorough search: Conduct a thorough search of existing patents, trademarks, and copyrights to ensure that your IP assets are unique and not already in use.
- Prioritize your IP assets: Prioritize your IP assets based on their value to your business. This will help you to focus your efforts on protecting the most valuable assets first.
- File for protection: File for protection of your IP assets, such as filing a patent, trademark, or copyright application. This will help to secure your legal rights to your IP assets.
- Create a strategy: Create a strategy for how to use and protect your IP assets. This may include licensing, commercializing, or enforcing your IP rights.
- Manage and maintain your IP portfolio: Once you have your IP portfolio in place, it’s important to manage and maintain it. This includes regular monitoring for infringement, updating your IP assets as necessary, and renewing any patents, trademarks or copyrights.
- Seek professional assistance: Building a great IP portfolio can be a complex process, and it’s recommended to seek professional assistance from patent and trademark attorneys who can help you navigate the process and protect your IP assets.
Patents can be used as bargaining chips against larger competition in several ways such as licensing, cross-licensing, patent pools, patent assertion and patent litigation:
- Licensing: You can use your patents as leverage to negotiate licensing agreements with larger companies. This can provide you with a steady stream of income while also allowing the larger company to use your technology.
- Cross-licensing: You can also use your patents as leverage to negotiate cross-licensing agreements with larger companies. This can allow both companies to use each other’s patents, which can be beneficial for both parties.
- Patent pools: You can use your patents as leverage to join or create a patent pool. A patent pool is a group of patents that are licensed collectively, which can be more efficient and cost-effective for both patent holders and licensees.
- Patent assertion: You can use your patents as leverage to assert them against larger companies that are infringing on your rights. This can help you to stop the infringement and recover damages.
- Patent litigation: You can use your patents as leverage to initiate patent litigation against larger companies that are infringing on your rights. This can be a costly and time-consuming process, but it can be an effective way to enforce your rights.
It’s important to note that using patents as bargaining chips against larger competition can be a complex and risky strategy. It’s recommended to consult with a patent attorney and consider your options before proceeding with any of these strategies.
In summary, building a great IP portfolio involves identifying your IP assets, conducting a thorough search, prioritizing your IP assets, filing for protection, creating a strategy, managing and maintaining your IP portfolio and seeking professional assistance. With a well-constructed IP portfolio, you will be able to protect your IP assets and leverage them for business growth and success.
Remedies For Intellectual Property Infringement
Every type of intellectual property (patent, copyright, trademark, trade secret) is protected by the law, from company brand logos to mechanical processes, to movies, to written works.
It is advisable to get familiar with the laws and and know your legal remedies if your intellectual property rights have been violated. Violations of intellectual property rights can be considered a crime and could result in imprisonment for those who break the law. Victims of the violation can also seek civil remedies in court to stop infringing behavior or to recover damages for any losses.
There are many options for remedying intellectual property infringement. This depends on the type of intellectual property rights that were violated, the severity of the damage, and the legal remedies the victims choose to pursue.
These remedies include:
Cease and desist letter
You can send a cease and desist letter to anyone who uses your intellectual property in violation of your permission. The letter informs the person who is using your intellectual property of their intent to use it without your permission and asks them not to do so again.
This cease and desist letter can help you avoid unnecessary delays and costs associated with formal proceedings for IP infringement.
Reaching an agreement
Instead of going to court to enforce an IPR infringement, you might consider negotiating with the infringing parties. For example, you might consider licensing your intellectual property to them (i.e. allowing the infringing parties to benefit from some rights in exchange for a fee).
It is possible to also contemplate mortgaging, selling, marketing, transferring your intellectual property, or entering into a coexistence agreement. In this case, the parties involved agree not to trade on the same or similar markets using identical or similar trademarks.
Mediation is an option if you are unable to reach an agreement with the infringing side.
Mediation is a form of alternative dispute resolution that involves an independent mediator. The mediator aids in the communication between disputing parties with the goal of reaching a resolution.
Most intellectual property disputes can be resolved through mediation, including those involving infringements of trademarks and copyright.
Injunctions are the most common remedy against all IPR infringements. Injunctions are court orders that order named individuals not to do certain acts (eg, using IPR owners’ intellectual property).
Injunctions may be either ‘perpetual’ or ‘interim. Interim injunctions can be granted in an emergency situation to stop a party from infringing acts during the proceedings. A court may grant perpetual injunctions as to the last relief, which prohibits the unauthorized use of IPR.
Injunction violations can lead to fines or even imprisonment.
Profits and damages
The IPR owner might be entitled to compensation if a profit was made due to the IPR infringement. These damages can be awarded by the courts in the form of either damages or an accounting of profits. The IPR owner has the option of either one or both but can only choose one.
Damages typically cover the cost of damage to the IPR owner. An account of profits covers any profits made by the infringing party as a result.
In cases where damages are awarded to an IPR owner, a calculation of the loss of profit is made.
An account of profits is a way to compensate an IPR owner for any loss they suffered due to the infringement. An account of profits calculates the profit made by the infringing parties as a result. An account of profits is a sum that is awarded to the IPR owner in order to restore them to the same position as they were in if the infringement had not occurred.
Costs are awarded
A court order that the infringer must pay the other party’s legal costs is known as an award of costs. A court order can award costs for either the entire amount or a percentage.
Delivery and/or destruction of infringing articles
Although there is no right to order the destruction or delivery of infringing materials and/or items used in making them, courts can make such an order if the court finds that the infringement has been proven. The courts will usually grant this relief in addition to an order.
If an order is placed for delivery of these items, it means that the infringing person must deliver all infringing products to the IPR owner and, if necessary, any items used in making the infringing products.
If an order is issued for the destruction of these items, it means that the infringing parties must destroy all infringing objects and, where necessary, any items used in making the infringing products.
These steps will ensure that the infringing party can no longer use infringing products.